Enforcement notice – Material change of use – Scrap-metal yard – Appellant council issuing enforcement notice alleging breach of planning control consisting of material change of use by increased throughput of scrap – Notice overturned by planning inspector – Whether intensification of use amounting to material change of use – Whether appellants entitled to contend for material change of use by reference to other factors not mentioned in enforcement notice – Appeal dismissed
The second respondent operated a scrap-metal yard on land in Hitchin, Hertfordshire, pursuant to a planning permission for such use granted in the 1970s. In 2009, the appellant council issued an enforcement notice alleging a breach of planning control consisting of a material change of use of the land, without planning permission, by the intensification of use from an average annual throughput of 74,500 tonnes of scrap to a new annual level of 181,000 tonnes. The notice alleged that, although the land benefited from an extant planning permission, the substantial increase in the level of operations and the resulting increase in noise, dust and vehicles had resulted in a new use with a different nature and character from the former use. The annual throughput figures were later corrected to allege an increase from 121,174 tonnes to 231,716 tonnes.
The second respondent appealed against the notices; that appeal was allowed by the first respondent’s planning inspector. The inspector found that there had been no breach of planning control within the meaning of section 174(2)(c) of the Town and Country Planning Act 1990. In reaching that conclusion, she applied a test of whether the increase in the scale of the use had reached the point where it gave rise to such materially different planning circumstances that, as a matter of fact and degree, it resulted in a change in the definable character of the use; she found that it had not. That decision was upheld by a judge in the court below: see [2012] EWHC 277 (Admin).
The appellants appealed. On the appeal, they sought to rely not simply on the increase in throughput but on other factors, including the increased use of gas bottles and canisters, with the potential for explosions, and changes in legislation concerning drivers’ hours of work, which had resulted in an increase in night-time or early morning lorry movements. They applied to amend their grounds of appeal accordingly.
Held: The appeal was dismissed.
Although intensification of a use was capable of constituting a material change of use, that would be the case only where the intensification had resulted in a change in the character of the use: East Barnet Urban District Council v British Transport Commission [1962] 2 QB 484, Blum v Secretary of State for the Environment [1987] JPL 278 and R v Thanet District Council, ex parte Tapp (2001) 81 P&CR 520; [2000] EGCS 87 applied. The test that the inspector had applied was in accordance with authority. Although the increase in tonnage was very substantial, the inspector had been entitled to conclude that it had not resulted in a change in the character of the use. The premises continued to be used as a scrap-yard, albeit on a larger scale.
The appellants should not be given permission to amend their grounds of appeal to include factors other than the increase in throughput. The further factors were not included in the breach of planning control that the appellants had alleged in the enforcement notice; nor had they formed part of the appellants’ case before the inspector. It would be inappropriate to give the appellants an opportunity to seek enforcement on other grounds at this stage in the proceedings. Accordingly, any flaws in the inspector’s approach in dealing with matters other than increased throughput did not entitle the appellant to a quashing order in the circumstances of the case.
Per curiam: It was permissible to consider off-site effects when assessing whether a material change of use had been established. The impact of the use on other premises was a relevant factor and it was necessary, when deciding whether the use had changed, to consider both what was happening on the land in question and its impact off the land.
Matthew Reed (instructed by the legal department of Hertfordshire County Council) appeared for the appellants; Daniel Kolinsky (instructed by the Treasury Solicitor) appeared for the first respondent; Anthony Dinkin QC and Clare Parry (instructed by Mullis & Peake LLP, of Romford) appeared for the second respondent.
